Wagner v. Cnty. of Maricopa

• Decision Date: 13 February 2013
• Docket Number: No. 10–15501.,10–15501.
• Citation: 706 F.3d 942
• Parties: Yvon WAGNER, as the personal representative of the Estate of Eric Vogel, Plaintiff–Appellant, v. COUNTY OF MARICOPA, a political subdivision of the State of Arizona; Joseph M. Arpaio, husband; Unknown Arpaio, Named as Jane Doe Arpaio—wife, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

706 F.3d 942

Yvon WAGNER, as the personal representative of the Estate of Eric Vogel, Plaintiff–Appellant,

v.COUNTY OF MARICOPA, a political subdivision of the State of Arizona; Joseph M. Arpaio, husband; Unknown Arpaio, Named as Jane Doe Arpaio—wife, Defendants–Appellees.

No. 10–15501.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 15, 2011.

Filed Nov. 16, 2012.

Amended Feb. 13, 2013.

John M. Curtin, Phoenix, AZ, for Plaintiff–Appellant.

Eileen D. Gilbride, Phoenix, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, Senior District Judge, Presiding. D.C. No. 2:07–cv–00819–EHC.

Before: JOHN T. NOONAN and N. RANDY SMITH, Circuit Judges, and FREDERIC BLOCK, Senior District Judge.^*

Opinion by Judge NOONAN; Dissent by Judge N.R. SMITH.

ORDER

The opinion filed on November 16, 2012 is amended by eliminating the following part of the opinion:

At Slip opinion page 13356 at Medical experts > through to page 13359 ending immediately before Argument to the Jury.>

Insert in its place the following paragraph:

the plaintiff of any foundation for medical testimony as to the probable cause of Vogel's death. We do not reach the admissibility of the medical testimony because as the case developed under the district court's rulings, the testimony lacked all foundation.>

The dissenting portion of the opinion filed on November 16, 2012 is amended by eliminating the following:

At Slip opinion page 13359 delete and replace it with the following paragraph:

They say “the third time's the charm.” Not so in what is now the third revision of this opinion, wherein the majority still fails to correct all of its errors. As a result of these errors, contrary to the Federal Rules of Evidence, non-contemporaneous hearsay testimony used to prove a declarant's memories, beliefs, and the cause of an underlying state of mind is now admissible. Making matters worse, the majority allows such testimony absent a foundation of personal knowledge. In its opinion, the majority reverses the district court on issues that have been waived and are not properly before the panel,>

The dissenting portion of the opinion is further amended by eliminating the following part of the dissent:

At Slip opinion page 13369 at EXPERT TESTIMONY > through to page 13372 immediately before CLOSING ARGUMENT.>

The section entitled CLOSING ARGUMENT > should be renumbered to roman numeral IV.

In light of these amendments, any petition for panel rehearing or rehearing en banc shall be filed within fourteen days from the date of this order.

OPINION

NOONAN, Circuit Judge:

The central figure in this case, Eric Vogel, suffered from mental illness. Our system of laws is administered by rational human beings. It has always been a challenge to the legal system to interact with the irrational.

Yvon Wagner, as the personal representative of the estate of her brother, Eric Vogel, appeals the judgment of the district court in favor of the defendants, County of Maricopa and Joseph Arpaio. We reverse the judgment and remand for a new trial.

FACTS

Eric Vogel was born on December 21, 1964. By the age of six, he was showing signs of potential illness. His parents withdrew him from school when he was in the second grade, and he was thereafter home-schooled until he graduated from high school. He attended a community college for two semesters and part of a semester at Arizona State University. Thereafter, he simply lived at home.

Living at home, without further formal education, Vogel had no gainful employment and lived a remarkably restricted life. The windows of his home itself were covered with blankets and tape so that no one could see in. After his father's death or departure, he lived alone with his mother. He left the home no more than two or three times to attend the funerals of relatives. In October 2001, when Vogel was 36, his sister, Yvon Wagner, visited the home and found him to be delusional, imagining that a snake was around his neck.

On the morning of November 12, 2001, for no apparent reason, Vogel left his home. Police responded to a report of a burglar in the neighborhood and spotted Vogel as a possible suspect. The first officer on the scene struggled to get control of him while Vogel shouted, “Kill me.” When a second officer arrived, Vogel stated that he, Vogel, must see the president. The police said they would accommodate him. He calmed down, and they drove him to the Phoenix jail.

In Arizona, common jails are kept by the sheriff of the county. Ariz.Rev.Stat. § 31–101. Joseph Arpaio, as the sheriff of Maricopa County, kept the jail to which Vogel was brought.

Vogel was put under arrest for assaulting a police officer. He completed a medical questionnaire, indicating that he had high blood pressure but no other health problems. A classification counselor interviewed him and placed a psychiatric hold on him. A psychological counselor examined him and concluded that he needed psychiatric care.

He was put in an isolation cell with a huge window opening the cell to the view of the jailers and to inmates. The next morning, November 13, Vogel was assessed by a psychological counselor as disoriented, paranoid, and psychotic. He told her that he was at the World Trade Center getting messages from satellites. She obtained an order for his transfer to the inpatient psychiatric unit at the jail.

That afternoon, Vogel was informed that he must “dress-out.” In the argot of the jail, “to dress-out” was to change from one's civilian clothes to prison garb approved by Sheriff Arpaio. The prison outfit included pink underwear. Vogel declined to change.

The “dress-out” prison officer summoned assistance—four other officers, each to hold an arm or a leg while Vogel's clothes were changed. He was placed on the ground, stripped of all his clothes, and forced into the jail ensemble including the pink underwear. As the process went on, he shouted that he was being raped. The officers were aware that he was being transferred to the Psychiatric Unit. At the end of the “dress-out” Vogel was wheeled there in “a restraint chair.”

Vogel received treatment for a week and was then bailed out by his mother. On December 6, 2001, he was in his mother's car when she had a minor traffic accident. The police were summoned. Before they arrived, however, Vogel left the scene and attempted to walk four or five miles to his home. He died the next day. The cause, according to the Maricopa County Medical Examiner, was acute cardiac arrhythmia.

PROCEEDINGS

On December 6, 2002, Vogel's mother as representative of his estate began this action in Arizona Superior Court. It was removed by the defendants to the federal district court, which eventually returned the case to the state court. The plaintiff amended to assert a claim against the defendants for violation of 42 U.S.C. § 1983 for subjecting Vogel to an unreasonable search and seizure, denying due process and the equal protection of the laws, and acting with deliberate indifference to his serious medical needs. A claim was also asserted under the Americans with Disability Act, 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as several claims under Arizona law. The case was transferred back to the federal district court.

In limine, the district court ruled that Vogel's mother and sister could not testify to what he told them about events at the jail. The court also ruled that counsel could not refer to “pink underwear” unless he could show that the record contained “credible evidence” that Vogel was aware of the color of the underwear. The court also precluded the testimony of the plaintiff's expert, Dr. Spitz, that Vogel's death was in part caused by the “dress-out,” thereby preventing the issue of liability for the death from reaching the jury. The court also limited the testimony of Dr. Esplin.

Before trial began, Vogel's mother died and his sister Yvon Wagner replaced her as the representative of the estate.

At the close of the trial, the court denied plaintiff's counsel the opportunity to make a rebuttal.

The jury returned a verdict for the defendants on each count. This appeal followed.

DISCUSSION

We review evidentiary rulings for abuse of discretion and reverse if the exercise of discretion is both erroneous and prejudicial. As Judge Smith points out, it is not entirely clear whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review. Compare United States v. Stinson, 647 F.3d 1196, 1210–11 (9th Cir.2011), with United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). We need not resolve the ambiguity here because our conclusions would be the same under either standard. We begin with the ruling limiting the testimony of Yvon Wagner.

Exclusion of Wagner's testimony. Wagner in her deposition stated:

He [her brother] felt he was being raped. He felt one of the officers attempted to put his penis in his mouth and that he had to keep his mouth so tight that he bruised his outer lips to avoid being accosted that way.

He was sure they were going to rape him. He hollered to people. He was sure that all the inmates heard him saying who he was and that he was being raped and please help him. And they were, you know, have [sic] a party at his expense....

He believed he had been raped. He believed somebody took their penis out of their pants and attempted to insert it in his mouth. And that's as close to—my brother was a virgin. He—36 years old, never touched another woman. This was very, I'm sure, frightening for him.

In response to the motion in limine, Wagner made the same argument she makes now. She argued that her statements were

not being offered to prove the details of the incident at the jail. Her testimony is not to prove an actual rape, but instead to show her brother's state of mind following his incarceration. Her testimony establish[es] the impact that the event...